What specifically about The Affordable Care Act is a “bad decision?” The part where it came from an idea developed at the Heritage Foundation, a conservative think-tank? Or the part where Governor Romney implemented it in Massachusetts?

You are clever Phil, I will give you that. It is true that some of this nonsense has been embraced at various times by conservatives/Republicans. That said, I don’t recall signing on as the defender of all things ever said by a Republican. Specifically, the mandate. Bad in more ways than one. Bad for you as it will be the downfall of Obamacare, as it should be.

Phil, there are many who have made the argument far better than I could, but the gist of the problem is that if the federal government can make you purchase a product, then there is no limit on the commerce clause. And of course the constitution was designed to limit the powers of the federal government. No, the mandate is not the only thing that is bad. How about the length? Any law that is 2000 pages long is simply too long and too complicated for people to understand. I think liberals like this because it empowers an army of bureaucrats to enforce the laws they see fit. Add to that is the hubris it takes to think a handful of elites can run the health care industry. I know you like to argue but do you really like Obamacare or do you just feel some obligation to defend it?

The purported limit on congressional power favored by the mandate’s opponents—between constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”—is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense. But even if it had any legitimate constitutional purchase, it would be satisfied in the case of the ACA. The overwhelming majority of those subject to the individual mandate are or will be engaged in the economic activity of receiving health care services. For that overwhelming majority, the mandate is a regulation of economic activity.

It is, of course, possible that the mandate could touch individuals living such isolated existences that they will never seek any health care services. For them, the mandate (if enforced against them) would indeed require an unwelcome purchase. But the Court’s cases have always recognized that Congress legislates on an aggregate, nationwide basis. No person can withdraw himself from the ambit of Commerce Clause-based legislation by arguing that, standing alone, his activity, or that a small group like him, does not substantially affect commerce. Congress is entitled to legislate based upon the aggregated activity of the class regulated. Honoring its longstanding traditions of judicial restraint and respect for the coordinate branches, the Court should not, in the present litigation, allow such hypothetical extreme cases to undermine the constitutionality of the ACA for the hundreds of millions already participating in the interstate health care market.

I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”